Often referred to as the “accidental lake,” the Salton Sea formed in the early twentieth century when heavy rain and snowfall caused a diversion in the Colorado River to burst and pour out into a dried up lakebed in the California desert. The Salton Sea is a terminal lake with no outlets and very little inflow of water, and it depends of agricultural runoff from the Imperial and Coachella valleys. As a result, the Salton Sea is ridden with pesticides, fertilizers, and salinity levels fifty percent greater than that of the Pacific Ocean.

Current State

Since the 1990s the Salton Sea has receded dramatically, driving out most remaining residents, businesses, as well as its wildlife.  In the late 1990s, and also to a lesser extent in 2006, the low water levels and lack of oxygen in the lake caused some ten million Tilapia to suffocate and wash up on shore.

As the Salton Sea’s shoreline continues to recede, hundreds of acres of foul-smelling, dry, chemically ridden lakebed is exposed. When kicked up by desert winds, the lakebed has the potential to cause hazardous dust storms, raising serious environmental and public health concerns. Furthermore, public health officials are concerned that because of the high levels of pesticides and fertilizers in the water, the dust may contain toxic heavy metals, such as arsenic. The high levels of dust released from the dried-up lakebed are inhaled by the 650,000 residents of the surrounding area.  Consequently, Imperial County currently has the highest asthma-related hospitalization rates in California.

The lake’s receding waters and hazardous dust storms are not only posing serious public health issues, but also a number of environmental concerns.  The Salton Sea, at forty-five miles long and fifteen miles wide, is California’s largest lake and one of the few remaining waterways in Southern California, and therefore serves as an important migration point for more than four hundred species of birds each year. Although there are varying opinions on the matter, most stakeholders agree that allowing the lake to dry up will have devastating effects on surrounding areas.

What Next?

The Salton Sea’s bleak conditions are only expected to worsen as even less water becomes available to maintain the lake.  In 2003, California implemented the Quantification Settlement Agreement, which re-apportioned water from the Colorado River to be distributed to urban areas and divert water away from the Salton Sea.  In response to concerns that the condition of the lake would worsen without an inflow of water, the Imperial Irrigation District (“IID”) agreed to send “mitigation water” to the sea until 2018.  Mitigation water is collected by asking farmers to fallow their land in exchange for a monetary pay out.  Being that this is only a temporary fix, under the agreement, the state is required to have a large-scale restoration effort ready to be set in motion by 2018.

As 2018 and the end of the supply of mitigation water approaches, the state and federal governments have begun to address the future of the Salton Sea.  This past July, Governor Jerry Brown announced an $80.5 million plan to work with the IID to build canals and artificial wetlands along the lake’s continuously receding shoreline.  Additionally, this past September, the Obama Administration budgeted $30 million to further expedite California’s habitat and dust suppression projects, improving air and water quality, and restoring fish and wildlife habitat.  Currently, the state is drafting a more comprehensive Salton Sea Management Plan, estimated at upwards of three billion dollars, which is scheduled for release by the end of 2016.

IID’s plan to salvage the Salton Sea proposes creating a smaller but more sustainable version of its former self that will still be able to serve the needs of its wildlife and surrounding communities.  The plan focuses on five specific goals: ensuring water supply reliability, protecting public health, developing carbon-free energy, protecting and restoring the sea’s ecosystem, and providing for economic growth.  IID Program manager, Bruce Wilcox states that, “a reconfigured sea will limit fugitive dust emissions, preserve and create avian habitat and expand economic opportunity for one of California’s most economically distressed areas.”

Currently, construction has begun on an experimental portion of artificial habitat of the Salton Sea. Small sections that are completely isolated from the rest of the lake are pumped with fresh water and then filled with new fish.  With the ability to move water in and out of these habitats, scientists hope that some of the lake’s stagnation and hyper-salinity issues will be resolved. These shoreline pools and shallow water habitats serve not only to restore the sea’s ecosystem, but also to reduce the formation of hazardous dust storms.

In regards to controlling the hazardous dust storms in the area, the IID’s plan focuses on covering exposed lakebed through the creation of shoreline pools and artificial habitats. Additionally, thanks to a two million dollar grant from the National Institute of Environmental Health Sciences, new air monitoring devices will be installed in the area to measure the amount of hazardous particles in the air.  These air monitoring devices will not only notify residents when they need to take extra precautions, but will also provide data that can help bring public awareness to the seriousness risk posed by airborne dust in the area.

Funding the Plan: Geothermal Potential

In addition to state and federal funding, local officials hope that they could tap in to the Salton Sea’s geothermal potential in order to secure much of the funding necessary. Despite being the largest geothermal reservoir in the United States, there are only eleven existing geothermal plants in the area. Although there are proposed plans to build large-scale geothermal plants on the dried up lakebed, construction of theses plants is very costly, which has prevented development in the past.  Most recently, Controlled Thermal Resources has proposed a plan to build a 250-megawatt geothermal plant on the Salton Sea’s southern shore. In their recent studies, the IID projected that the new geothermal developments could generate up to two billion dollars total, some of which would go towards Salton Sea restoration efforts. However, research done by the National Renewable Energy Laboratory predicts much smaller numbers, somewhere between $98 million and $210 million.

Conclusion

The proposed visions for the future of Salton Sea are far from the dynamic place it once was.  However, in its current, toxic condition, it poses serious health concerns to surrounding citizens; and as water levels continue to fall, it threatens California’s ecosystems that rely on clean water for survival.  Future restoration projects will be designed with this in mind, and will focus on long-term solutions to fix the Salton Sea’s catastrophic problems.  Although not ideal, the varying proposals are realistic and, if successful, the restoration of Salton Sea will help alleviate many environmental and public health concerns that currently plague the area.

Alicia Garcia

Image: Dead trees in the Salton Sea, California. Flickr User Phil Price, Creative Commons.

 

Sources:

Chris Iovenko, Toxic Dust From a Dying California Lake, THE ATLANTIC (Nov. 9, 2015), http://www.theatlantic.com/science/archive/2015/11/the-airborne-toxic-lake-event/414888/.

Ian James, As the Salton Sea’s decline looms, a rush to cover up dry lakebed, DESERT SUN (Oct. 26, 2016), http://www.desertsun.com/story/news/environment/energy-water-summit/2016/10/27/salton-seas-decline-looms-rush-cover-up-dry-lakebed/92521442/.

Allison Harvey Turner & Barry Gold, Solving the Salton Sea Crisis, SAN DIEGO TRIB. (Oct. 12, 2016), http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-salton-sea-crisis-20161012-story.html.

Matt Simon, The Salton Sea: Death and Politics in the Great American Water Wars, WIRED (Sept. 9, 2016), https://www.wired.com/2012/09/salton-sea-saga/.

Neal V. Hitch, A History of Water- and the Salton Sea- in Imperial, IVY PRESS (Mar. 21, 2015), http://www.ivpressonline.com/life/desertmuseum/a-history-of-water-and-the-salton-sea-in-imperial/article_40c423a4-c9d3-5aa7-8255-e43ea4c6a559.html.

Quantification Settlement Agreement, Water Education Foundation,  http://www.watereducation.org/aquapedia/quantification-settlement-agreement, (last visited Nov. 11, 2016).

Sarah Friedman & Kyle Jones, Time is Running Out to Save the Salton Sea, SACRAMENTO BEE (Sept. 27, 2017), http://www.sacbee.com/opinion/op-ed/soapbox/article104484671.html.

Pamela Marineau, Imperial Irrigation District Releases Framework for Salton Sea Restoration, Ass’n Cal. Water Agencies (July 29, 2015), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Tyler Haden, Where’s the Money and the Plan That Will Save the Salton Sea?, L.A. TIMES (Oct. 16, 2016), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Ian James, Tracking Asthma Threats in the Imperial Valley’s Hazy Air, DESERT SUN (Sept. 26, 2016), http://www.desertsun.com/story/news/environment/2016/09/21/imperial-valley-new-pollution-monitors-installed-help-track-dangers-hazy-air-asthma/89818666/.

Sammy Roth, Salton Sea Could Get New Geothermal Power plant, DESERT SUN (Mar, 16, 2015), http://www.desertsun.com/story/tech/science/energy/2016/03/15/salton-sea-could-get-new-geothermal-power-plant/81839422/.

Sammy Roth, Don’t Count on Geothermal to Save Salton Sea, DESERT SUN (Feb. 3, 2016), http://www.desertsun.com/story/tech/science/energy/2015/12/31/report-dont-count-geothermal-save-salton-sea/78031508/.


During late summer 2015, activity by the U.S. Environmental Protection Agency (“EPA” or “Agency”) triggered a catastrophic release of three million gallons of acidic mine drainage from the Gold King Mine north of Silverton, Colorado into Cement Creek, a tributary of the Animas River.  The yellowish-orange Release, consisting of arsenic, cadmium, iron, and zinc flooded into the creek.  The acidic release then travelled down the river over the course of a few days, crossing several states and communities in the process. Over a year later, the Gold King Mine spill has left many questions and impending legal battles in its wake.

On August 5, 2015, the EPA began digging at the Gold King Mine Level 7 Audit. At 10:51 A.M, a worker stopped when he discovered a “spring.”  Within minutes, the water increased flow and turned from clear to red to orange.  The EPA immediately took action by stabilizing the mine entry and creating various treatment ponds.  Though the EPA took immediate measures, it could not remove the sediments from the water that had already mixed with the waters of Cement Creek. Several metals were dissolved in the release—such as lead, arsenic, and cadmium—resulting in orange-yellow river flows. The EPA’s report on the release can be found here.

One year later, surface water has returned to pre-release levels.  In addition to avoiding discolored water and soil, the EPA suggested some guidelines for health and safety issues associated with spills.  Moreover, the EPA has assured the public that downstream sources are safe for irrigating farms and for watering livestock, as the region’s livelihood relies heavily on agriculture.  Fish from the Animas River are even safe to eat; however, the EPA has authorized continued monitoring of metals in local fish, since contaminants may concentrate over time.

The EPA listed Gold King Mine Remediation on its National Priorities List for Superfund Cleanup in September 2016, despite local concerns over marketing for tourism. The superfund program uses federal money to investigate and clean up after disasters. The Agency hopes to collaborate with all relevant entities, including private, public, tribal, and non-profit, to stimulate remediation and change in the area.  Later in September, the EPA granted an additional $260,000 for cleanup costs to both tribal and state authorities, including the Southern Ute Indian Tribe, the City of Durango, and La Plata and San Juan Counties. The EPA hopes that Gold King’s superfund designation will help not only the immediately-impacted areas surrounding the mine, but also downstream water users, including states like New Mexico and Utah as well as the Native American tribes of the Navajo Nation and Southern Ute Tribe. Colorado’s Department of Public Health and Environment mirrored these sentiments, has worked to facilitate collaboration between state and federal actors and community involvement.

Despite Superfund designation, environmental lawyer Thaddeus Lightfoot believes listing Gold King Mine will do little to resolve the ongoing lawsuits against the EPA. Most significantly for Lightfoot, the Superfund designation green-lights funding to investigate the release’s cause and to begin actual cleanup. Finally, the government’s role, according to Lightfoot, will help answer a long-debated question regarding the head of environmental cleanup in favor of the federal government.

The release also spurred awareness about inactive mine seepage and long-resisted cleanup. For instance, the Impacted Streams Task Force has plans to evaluate the draining mines inventory and, hopefully, prevent or reduce toxic drainage from inactive mines. Moreover, the town of Silverton and San Juan County have embraced the federal program, despite an argument that, through its slow-moving process, the EPA is holding the region hostage.

As of October 2016, Navajo Nation farmers adjacent to the Animas River have not received compensation for their losses associated with the Gold King Mine Release.  Navajo Nation President Russell Begaye said he believes the Navajo farmers deserve reimbursement and the San Juan River deserves cleaning, neither of which the federal government has done.  President Begaye called the inaction “shameful,” especially following two instances in which the U.S. Senate accepted responsibility for the release. In fact, Navajo Nation has filed suit against the EPA and other entities, alleging the release could have been prevented. Politicians have commented on the suit, including Arizona Congressman Raúl Grijalva, who believes the EPA should make efforts to mitigate the losses the release triggered.

During December 2016, the Navajo Nation filed a complaint against the EPA seeking over $160,000,000 in damages resulting from the Release. Navajo Nation claims the release injured the Navajo’s longstanding confidence on the San Juan.  This is the second lawsuit from Navajo Nation, the first being civil suits against mining companies for incurred response costs with the release. Navajo Nation’s Attorney General, Ethel Branch, commented that the release transformed their sacred river from a source of life into a threat to life. The Navajo complaint alleges the EPA knew Gold King was at risk to a blowout and failed to notify the Navajo residents for two days after the release. Moreover, the Navajo claim the contamination will continue to pollute the Navajo Nation and its resources.

The EPA announced January 13, 2017 that it would not reimburse residents—including the Navajo—for the spill. The Agency, in a press release, said that an independent claims officer ruled that the EPA and its actions leading up to the spill were protected under the Federal Tort Claims Act, which protects government actions that constitute a “discretionary function or duty” if done with due care.  Those who have filed claims, however, may challenge the EPA’s decision.

More than a year after the Gold King Mine spill, remediation efforts are ongoing, and metallic levels in the affected waters has returned to normal. Despite these environmental efforts, residents must bear their own individual costs associated with the spill. As long as individuals remain uncompensated, fully resolving the spill might become arduous and drawn out.

Connor Pace

Image: The Animas River between Silverton and Durango, Colorado. Wikimedia Commons User Riverhugger.

Sources:

Alysa Landry, Navajo Nation seeks $160 Million in damages for EPA spill, NAVAJO-HOPI OBSERVER (Dec. 27, 2016),  http://www.nhonews.com/news/2016/dec/27/navajo-nation-seeks-160-million-damages-epa-spill/.

Bruce Finley, EPA puts Gold King Mine, other Colorado sites on priority list and pegs acid muck flow at 5.4 m gallons a day, DENVER POST (Sept. 7, 2016), http://www.denverpost.com/2016/09/07/gold-king-animas-mining-sites-disaster-declaration/.

Bruce Finley, Gold King one year later: Colorado’s mustard-yellow disaster spurs plans for leaking mine, DENVER POST (Aug. 5, 2016), http://www.denverpost.com/2016/07/24/gold-king-mine-spill-animas-river-one-year-later/.

Darryl Fears, Colorado gold mine is one of EPA’s new Superfund pollution sites, WASH. POST  (Sept. 7, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/09/07/colorado-gold-mine-is-one-of-the-epas-new-superfund-pollution-sites/?utm_term=.b6bb50d49f84.

Encouraging News from the EPA on the Gold King Mine, DENVER POST (Sept. 9, 2016), http://www.denverpost.com/2016/09/09/encouraging-news-from-the-epa-on-gold-king-mine/.

Kieran Nicholson, EPA awards $260,000 more in grants in wake of Gold King Mine spill, DENVER POST (Sept. 29, 2016), http://www.denverpost.com/2016/09/29/epa-grants-gold-king-spill/.

Chase Olivarius-Mcallister, Superfund: A dirty word to some in Silverton, DURANGO HERALD (Aug. 3, 2013 1:14 PM), https://durangoherald.com/articles/2026-superfund-a-dirty-word-to-some-in-silverton.

Navajo Nation Sues EPA Over Gold King Mine Disaster, INDIAN COUNTRY TODAY MEDIA NETWORK (Aug. 18, 2016), http://indiancountrytodaymedianetwork.com/2016/08/18/navajo-nation-sues-epa-over-gold-king-mine-disaster-165510.

Navajo President Slams EPA, NAVAJO POST (Oct. 3, 2016), http://navajopost.org/navajo-president-slams-epa/.

Sara Randazzo, Navajo Nation Seeks More Than $160 Million From EPA in Colorado Mine Disaster, WALL ST. J. (Dec. 5, 2016 7:09 PM), http://www.wsj.com/articles/navajo-nation-seeks-more-than-160-million-from-epa-in-colorado-mine-disaster-1480982978.

U.S. Dep’t. of the Interior, Bureau of Reclamation Technical Service Center, Technical Evaluation of the Gold King Mine Incident, https://www.usbr.gov/docs/goldkingminereport.pdf (last visited Feb. 9, 2017).

U.S. EPA, Frequent Questions Related to Gold King Mine Response, https://www.epa.gov/goldkingmine/frequent-questions-related-gold-king-mine-response (last updated Dec. 13, 2016).

Press Release, U.S. EPA, Press Releases and Updates for Gold King Mine Response, https://www.epa.gov/goldkingmine/press-releases-and-updates-gold-king-mine-response (last updated Jan. 13, 2017).

Federal Tort Claims Act, 28 U.S.C. § 2680(a) (2017).

 

 


The Water Law Review would like to congratulate our six new Staff Editors for their hard work in completing a successful Spring 2017 Candidacy packet.

Welcome to the Water Law Review!


Kristina Ellis
Michael Larrick
Kathryn Mailliard
Megan McCulloch
Christopher McMichael
Alexandra Tressler


Despite the recent above-average rainfall in Northern California, the state is currently in its fifth year of severe drought.  Although two of the state’s largest water reservoirs, Shasta and Oroville, have recently filled up to ninety-percent capacity, and heavy snowfall over the mountains has improved conditions in the northern part of the state, one fifth of California still remains in the deepest category of drought.

While experts have predicted that Southern California is in for a hot and dry winter—which is usually California’s wettest time of the year—La Niña conditions mean that Northern California could experience winter storms, which would allow for average or above-average snowfall in the Sierra Nevada mountain range.

In response to these anticipated conditions and water scarcity concerns, California is attempting to adapt its water laws not only to withstand the current drought conditions, but also to better prepare for future droughts.  Rather than focusing solely on how to get more water to their citizens, much of the efforts aim at revising outdated policies and addressing long-standing issues.

Calls for Change:  An Outdated System?

California water law is a hybrid of the prior appropriation system and riparianism. Although California water law recognizes both riparian and appropriative rights, the former is given priority over the latter. This hybrid system works best when there is an abundance of water and a smaller population.  However, with today’s warmer climate, drier conditions, and upwards of thirty-nine million residents currently living in California, many say that the state’s water allocation system is becoming outdated and inefficient.

Most water rights in California, including those held by municipalities and agricultural users, are appropriative water rights, rather than the senior riparian rights, because the property is not located near a river or stream. During times of drought, those with junior water rights have their ability to use water curtailed so that senior water right holders receive the share of water to which they are entitled.  There are a number of issues that stem from this “first in time, first in right” system, and residents are increasingly pushing courts and the state legislature to make some changes.

One issue exists between the agricultural sector, which owns a majority of the states senior appropriative water rights, and municipalities, that in most cases, were granted water rights later than agricultural appropriators and therefore have rights that are junior to those belonging to farmers and ranchers.  Critics of the state’s water allocation system argue that the inequality between “senior” and “junior” right owners impedes the state’s ability to efficiently allocate the scarce water supply.

Real Change: Conservation, Enforcement, and Public Records

This past year, for the first time in the state’s history, California implemented a statewide mandate restricting residential water use by twenty-five percent. Although there was backlash to imposing the restrictions, the state saw an overall improvement in the implementation of conservation measures and drought predictions. For example, the Metropolitan Water District of Southern California, which supplies the state’s largest city, Los Angeles, and twenty-five other cities and districts with water, expects to provide users with about three-fourths of their water supply. Additionally, the district plans on replenishing depleted underground reservoirs and setting aside more excess water for storage. However, despite these efforts to increase conservation, California lifted the restrictions this past June due to slight improvement in drought conditions. Since lifting the restrictions, urban water consumption rates rose nearly 10 percent from the previous year.

Although California’s urban water suppliers have complied with the water usage regulations, very few state agencies have agreed to penalize customers for using excessive amounts of water. Furthermore, due to California’s stringent public records law, utility companies do not have to disclose the names of the largest water users. During the recent drought, mega-users have used these public records laws to protect their identities from public scrutiny.

In response, the state has enacted SB 814, which requires water districts to enforce restrictions on excessive water use. Under this new law, agencies are now required to set limits on residential water consumption. Residents can pay fines of up to $500 for every 758 gallons of overuse. Furthermore, the names of violators will be made public. However, this law only takes effect when the state is in a drought emergency.

In addition, the state is attempting to tackle its water issues with The Open and Transparent Water Data Act (AB 1755). The legislation was enacted in 2016 and focuses on updating the state’s water information system by providing a more transparent and efficient system for managers to obtain more comprehensive water data.  Currently, all levels of governmental agencies collect such water data, which can be inefficient, and may also lead to inaccessible and incompatible data.  Under the new system, all new and pre-existing water datasets will be integrated on a statewide online water information platform to provide managers with fuller information on water transfers. Supporters of the bill see it as a critical step in ensuring the long-term sustainability of the state’s limited water supply.

By providing comprehensive data, this new legislation will also help with the implementation of California’s groundwater law, the Sustainable Groundwater Management Act.  In the past, California did not require water users to report their groundwater usage or restrict its use despite declining groundwater levels.  During times of drought, groundwater makes up for about sixty percent of the state’s water demands, and excessive pumping has caused the land in some regions of California to experience subsidence of up to ten feet.

Notably, researchers have just discovered a new source of groundwater that is approximately ten thousand feet beneath Central Valley. Although this is still a relatively new finding, residents have expressed concerns that pumping this water could exacerbate the already-existing issues with pumping groundwater. However, the state’s groundwater law requires users to establish groundwater sustainability agencies that will regulate manage and monitor groundwater pumping in the future, which may help to solve many of these problems.

In the coming years, California hopes to create a more efficient and effective way to allocate, regulate, and maintain the state’s scarce water supply. The newly enacted legislation is a first step in reaching the goal of getting out of the current drought and better preparing for the future.

                                                                                                            Alicia Garcia

Image: The Lake Sonoma marina in Northern California. Flickr user David McSpadden, Creative Commons.

 

Sources:

David Gom, NOAA’s Winter Forecast Says no Rain for you, Southern California, SOUTHERN CALIFORNIA PUBLIC RADIO, (Oct. 20, 2016), http://www.scpr.org/news/2016/10/20/65704/noaa-s-winter-forecast-says-no-rain-for-you-southe/.

Matt Stevens, Califonria’s Heavy Water Users Could Face Penalties if Drought Persists, L.A. TIMES, (Sept. 2, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-wasters-20160831-snap-story.html.

Ellen Knickmeyer and Amy Taxin, Officials Maintain Conservation Message Despite California’s Drought Divide, CLAIMS JOURNAL, (Nov. 8, 2016), http://www.claimsjournal.com/news/west/2016/11/08/274794.htm.

Kirsten James, California’s New Water Data Law Will Have Far-Reaching Benefits, NEWS DEEPLY, (Oct. 11 2016), https://www.newsdeeply.com/water/community/2016/10/11/californias-new-water-data-law-will-have-far-reaching-benefits.

Tara Lohan, Legislative Update: 6 New California Laws Impacting Water, NEWS DEEPLY, (Oct. 20, 2016), https://www.newsdeeply.com/water/articles/2016/10/04/legislative-update-six-new-california-laws-impacting-water.

Mark Drew, Community Voices: New Legislation Key to Water Management, (Nov. 4, 2016), http://www.bakersfield.com/opinion/community-voices-new-legislation-key-to-water-management/article_8e655c02-1cdc-5f66-aab2-3b8683792477.html.

California Drought: Impacts and Solutions, http://www.californiadrought.org/drought/current-conditions/ (last visited Nov. 4, 2016).

Weston Phippen, California’s New Drought Rules, THE ATLANTIC, (May 10, 2016), http://www.theatlantic.com/national/archive/2016/05/california-water/482064/

Marr Stevens & Bettina Boxall, Some Emergency Drought Rules Might be Eased But Don’t Start Hosing Down Sidewalks, L.A. TIMES, (May, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-conservation-20160509-story.html.

Kevin Haroff, The California Drought and Its Impact on State Water Law and Policy, MARTEN LAW, (July 28, 2015), http://www.martenlaw.com/newsletter/20150729-california-drought-state-water-law-policy.

Richard M. Frank, Another Inconvenient Truth: California Water Law Must Change, S.F. CHRONICLE, (Apr. 10, 2015), http://www.sfchronicle.com/opinion/article/Another-inconvenient-truth-California-water-law-6192703.php.

Kristin L. Martin, They Can Have My Hose When They Pry It From My Cold Dead Hands: When California is Faced With a Drought, Who Gets Water and Who Goes Without?, Texas Envt’l. Law Journal Vol. 47, (Apr. 25, 2016) http://dx.doi.org/10.2139/ssrn.2769640.

 


Spring 2017 Water Law Review Candidacy

The Spring 2017 Water Law Review Candidacy Packet is now available.

Candidacy packets must be submitted by 11:59 p.m. on Sunday, January 29.

The packet may only be accessed from TWEN during the candidacy period.

Completed packets will also be submitted via TWEN. To access the packet, please add the course “WLR Candidacy”.

For more information, contact:

Editor in Chief Blaine Bengtson at wlr@law.du.edu


It is not present in the mountain streams, reservoirs, or water treatment plants, but it still may be lurking in many pipes in cities and residential spaces throughout the country that were built before 1950.

Although Denver Water has taken major steps to eliminate lead in the city’s drinking water, it is nearly impossible to target every existing lead pipe within households throughout the city. It would require excavating front and back yards leading up to Denver Water meters, and even  interior excavation if the source is not easily identified. Because this process is so intimate to the household space, the duty has fallen on the residential caretakers to test and evaluate the lead levels in their own personal drinking water. The issue many U.S. cities are facing is that residents are either uninformed or they wrongfully assume that their residence does not have lead piping. Denver Water has made strides in aiding customers in the regular testing of their water by giving out a free lead-testing kit to anyone who requests one, and then replacing any lead piping at no cost to the customer. Although the earth-shattering drinking water issues in Flint brought forth the lead scare in many cities in the past couple of years, this problem has been haunting Americans for more than a century.

Lead is one of the most dangerous neurotoxins known to man, causing health issues for Americans since the installation of lead water distribution pipes in the late Nineteenth Century. In 1900, more than seventy percent of the nation’s cities with populations greater than 30,000 residents established water distribution service lines through lead piping. Why would these early water piping pioneers choose lead over much cheaper substances such as iron or even copper to create these pipes? The answer seemed simple: lead lasts almost twice as long and is more pliable when crafting around existing structures. In the mind of lead manufacturers and public officials, the value of these pipes outweighed the potential health risks associated with their use.

In the 1920s many cities opted to halt the installation of lead pipes for water distribution. However, because the government did not federally mandate the movement and there was no concrete evidence against its use, installations continued. During this time, lead-skeptic physicians started to voice their unease, and a small sector of the medical community attempted to link the rise of lead poisoning in Americans to the growing underground network of lead pipes taking over the nation’s drinking water distribution. This “hunch” turned into a small battle with the Lead Industries Association (“LIA”) who was consistently pumping out positive propaganda in an effort to save face for the largest monetarily-valued asset of their industry: lead pipes for water service lines. The LIA and its backers dismissed the disputing physicians’ claims by alluding that the symptoms the lead poisoning victims faced, such as slowing growth in children, central nervous system defects, hearing problems, and even cancer, were actually scattered symptoms of similar diseases or sicknesses. They went further to state that lead poisoning tests were not well-developed and gave faulty results causing unnecessary fear.

It was not until the Safe Drinking Water Act of 1974 (“SWDA”) that the federal government decided there was indeed a concrete link between the poisoning and the pipes. This act mandated safe drinking water in general for the nation and handed the reigns over to the Environmental Protection Agency (“EPA”) to set the standards. In 1986, the EPA passed a series of amendments, one of which prohibits the “use of any pipe or plumbing fitting or fixture, any solder, or any flux, after June 1986, in the installation or repair of (i) any public water system; or (ii) any plumbing in a residential or non-residential facility providing water for human consumption, that is not lead free.”

With these new regulations, government officials began to hold meetings to discuss what they would mean for their cities. Many cities established plans to either eliminate—or find alternatives to—lead piping for water distribution. Not all cities were equally concerned about the danger lead posed, or if they were, economic factors were of bigger concern. The cost to deal with the lead-pipe infrastructure would put a huge dent in neighborhood budgets, creating a risk of bankruptcy for local governments.  Many officials brushed aside the concerns of lead piping as a “want” for the city, rather than a “need.”

The new regulations soon came to the attention of another group of federal agencies, and in 1991 the U.S. Centers for Disease Control and Prevention (“CDC”) expressed their concern for lead poisoning. The CDC proposed lowering the level for individual intervention to fifteen micrograms per deciliter (“µg/dL”) and implementing lead-poisoning prevention campaigns in places where children had blood lead levels (“BLL”) greater than ten µg/dL.

This stance from the CDC caused the EPA to step up and play an even larger role in the lowering of BLLs. They did so by passing the Lead and Copper Rule (“LCR”) in 1991. This rule established requirements for corrosion control treatment; lead service line replacement, and public education. Despite the rule’s good intentions, the American Water Works Association (“AWWA”) brought suit against the EPA claiming it did not give proper notice for the updates. They also claimed that a public government agency did not have the authority to tear up private property to replace lead service lines. The AWWA prevailed in court and the LCR regulations were ruled unenforceable until the EPA properly submitted it with amendments and reasonable time limits. These amendments included many concessions, the most notable being the permission of partial pipe replacements.

Although the EPA passed the amendments in an effort to compromise and accommodate the monetary issues many cities faced with the complete removal of lead pipes, this type of repair proves to be an even larger issue than the pipes already contaminating water below the surface. As cities came to find out, partial pipe replacements allow for the resting lead sediments at the bottom of the pipes to be shaken up and then distributed into the consumer’s water supply, increasing lead sediment in water by a significant amount. Another form of partial repair involves connecting old lead pipes to new copper pipes using brass fittings. This quick-fix can accelerate galvanic corrosion, thus releasing an increased amount of lead into the service pipes. Partial replacements have become the unknown death sentence to many U.S. cities that utilize this money-saving method to “fix” the issues they have with rising BLLs.

Around this time local governments began scrambling to replace piping or come up with quick-fix alternatives to their original efforts in order to avoid sanctions from the EPA. Yet many cities also realized that the EPA only brought formal actions —compliance agreements, administrative orders with or without penalties, or enforcement actions in court — on ten percent of the violations in 2015. This reduced the motivational momentum that many local governments initially felt after the LCR was first introduced. As a result, many cities did not think twice about opting for cheaper partial replacements instead of complete system overhauls, despite the dramatic increase of health risks. The dangers of this cost-saving gamble backfired became all to clear with the Flint water crisis in 2014, where as many as 12,000 children were exposed to highly toxic levels of lead through drinking water.

On the other hand, one city in particular, Madison, Wisconsin, took the public’s good health to heart and replaced all of the city’s lead service pipes between 2001–2011. The city described the replacements as “noisy, messy, and disruptive, but successful.” Although the process was all of the above, the city’s actions dramatically reduced the risk of lead contamination in drinking water, and their residents have nothing to say about the decade of torturous upgrade but “thanks.”

Many other cities are still battling the EPA’s tighter restrictions. The most recent of these restrictions is the Reduction of Lead in Drinking Water Act (“RLDWA”) established in 2011. This honed in on the definition of “lead-free” which was previously allowing “lead-free” items to be composed of eight percent lead. The EPA scaled this number back to 0.25 percent, and in that same act, they prohibited the use or introduction into commerce of “[P]ipes, pipe fittings, plumbing fittings or fixtures . . . used exclusively for non-potable services such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption.” In 2013 the agency added fire hydrants to that list through the Community Fire Safety Act (“CFSA”).

Denver has more than 3,000 miles of water mains, and Denver Water crews install or replace an average of 60,000 feet of pipe per year. Each piping project is completely different because of the conditions at the project site, and it continues to be an arduous task to fully replace the city’s pipes inside and outside of the home. The long history of lead pipes contaminating cities’ drinking water proves that the replacement of pipes is an expensive and disruptive task for local and state governments. Unknowingly, American citizens are still drinking water with lead percentages unfit for human consumption. Today, the EPA, AWWA, and the CDC formally recognize the issue, and together they are taking small, but steady steps with local, city, and state governments for the ultimate removal of lead pipes in cities. These agencies continue to brainstorm ways to police cities and prevent BLLs from reaching levels above zero simply because of drinking water. 

Rebecca Spence

Image: The District of Columbia Water and Sewer Authority replacing lead piping along Irving Street NW back in 2008. Flickr user IntangibleArts, Creative Commons.

Sources:

Lead and Copper Rule, EPA, https://www.epa.gov/dwreginfo/lead-and-copper-rule (last visited Oct. 11, 2016).

Section 1417 of the Safe Drinking Water Act: Prohibition on Use of Lead Pipes, Solder, and Flux, EPA, https://www.epa.gov/dwstandardsregulations/section-1417-safe-drinking-water-act-prohibition-use-lead-pipes-solder-and (last visited Oct. 11, 2016).

Safe Drinking Water Act (SDWA), EPA, https://www.epa.gov/sdwa (last visited Nov 4, 2016).

Kenneth Gray, The Safe Drinking Water Act Amendments of 1986, Envir. Law Rep. (1986), http://elr.info/sites/default/files/articles/16.10338.htm (last visited Nov. 4, 2016).

Richard Rabin, The Lead Industry and Lead Water Pipes “A Modest Campaign,”98 Am. J. Pub. Health (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2509614/ (last visited Oct. 10, 2016).

Arthur Delaney, Lots Of Cities Have The Same Lead Pipes That Poisoned Flint The Huffington Post (Jan. 28, 2016,12:40 PM), http://www.huffingtonpost.com/entry/lead-pipes-everywhere_us_56a8e916e4b0f71799288f54.

Basic Information about Lead in Drinking Water, EPA, https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-water (last visited Oct. 14, 2016).

Brian Maass, Denver Water Steps Up Lead Pipe Removal, CBS DENVER (June 13, 2016, 11:50 PM), http://denver.cbslocal.com/2016/06/13/denver-water-steps-up-lead-pipe-removal/.

Bryce Covert, Dangerous Levels of Lead Have Been Found in Water Systems Nationwide ThinkProgress (June 28, 2016), https://thinkprogress.org/dangerous-levels-of-lead-have-been-found-in-water-systems-nationwide-5e43d5169a5e#.v4h4otxzp.

Darryl Fears & Brady Dennis, One City’s Solution to Drinking Water Contamination? Get Rid of Every Lead Pipe. Washington Post (May 10, 2016), https://www.washingtonpost.com/national/health-science/one-citys-solution-to-drinking-water-contamination-get-rid-of-every-lead-pipe/2016/05/10/480cd842-0814-11e6-bdcb-0133da18418d_story.html

Flint Water Crisis Fast Facts, CNN (Oct. 17, 2016, 3:21 PM), http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/index.html.

Pipe Replacement, Denver Water, http://www.denverwater.org/ConstructionProjects/PipeReplacement/ (last visited Nov. 9, 2016).

Request a Lead Test, Denver Water, http://www.denverwater.org/waterquality/watersafety/leadcopper/lead-test-request/ (last visited Nov. 4, 2016).

Sheila Kaplan & Corbin Hiar, How an EPA Project Backfired NBC Investigations (Aug. 8, 2012, 5:08 AM), http://investigations.nbcnews.com/_news/2012/08/08/13179335-how-an-epa-project-backfired-endangering-drinking-water-with-lead.

Tiffany Stecker, Drinking Water: Federal Law Makes Lead-Pipe Removal Anything But a Cinch E&E Publishing (July 7, 2016), http://www.eenews.net/stories/1060039790.


In Re: The Application of High Valley Farms, LLC (14CW3095)

Can a water user appropriate a water right under Colorado law in order to grow marijuana commercially?  This quandary is a matter of first impression before the state’s Division 5 water court.  The issue was first raised in August of 2014 when Basalt-based High Valley Farms, LLC filed a water court application in order to irrigate its marijuana plants as well as better protect this cash crop in times of drought.  High Valley Farms (“High Valley”) operates a 25,000 square-foot grow operation in the Roaring Fork basin in western Colorado.  The grow operation supplies a recreational marijuana store in downtown Aspen called Silverpeak Apothecary.

In order to claim a water right, a user must first put it to “beneficial use.”  Pursuant to Colorado statute 37.92-103(4), “‘[b]eneficial use’ means the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”

As part of the application process, the Division 5 engineer, Alan Martellaro, submitted a Consultation Report to the Division 5 water referee, Holly Krisner Strablinzky, recommending against approval until High Valley addressed a number of concerns.  Among the issues Martellaro raised, High Valley needed to explain how its application shows the element of beneficial use in light of the requirement that an appropriation must be “lawfully made.”

In its response to the Consultation Report, High Valley’s attorney Rhonda Bazil argued that Amendment 64, the 2012 state constitutional amendment legalizing the consumption and sale of recreational marijuana, also legalized the cultivation of recreational marijuana, making High Valley’s proposed use lawful—and therefore beneficial—under state law.

In addition to Amendment 64’s statutory language regarding the legalization of marijuana cultivation, Bazil also pointed to federal policy by the Bureau of Reclamation (“BOR”) saying that—while it would not approve its own facilities or water to be used to by the Colorado marijuana industry—it would not prohibit the use of other water that merely passes through its facilities for these businesses to utilize.  The BOR instituted this policy in 2014, the same year High Valley filed its original application.  The BOR has since renewed its stance until May 2017. Bazil highlighted that her client’s proposed augmentation water would come from non-federal sources (Wolford Mountain Reservoir) and is thus consistent with the BOR’s policy.

Additionally, Bazil pointed to the McCarran Amendment, a 1952 law in which the federal government ceded its power to manage water rights to the states, arguing this law favors High Valley’s interpretation of “lawfully” because state law exclusively controls in water law issues and marijuana cultivation is legal according to the state constitution.

Bazil also argue that the state water engineer has previously approved of the use of water to grow marijuana plants on two different occasions: once in October 2014 for a well and once in March of 2015 for irrigation purposes.  In those two statements supporting the use of water for marijuana cultivation, the Colorado state engineer said that state officials should allow water rights holders to use their irrigation rights to irrigate any type of plant that is legal to grow under Colorado state law, including marijuana.

If water officials rule that growing marijuana fails to constitute a beneficial use, the decision could have widespread implications for Colorado’s entire cannabis industry, which is dependent on water.  Ultimately, Bazil cautions that an adverse decision could call into question the ability of Colorado marijuana grow operation without access to municipal water to grow plants.

But High Valley’s argument is not without some vulnerability.  For example, a recent state Supreme Court decision that works in High Valley’s disfavor is Coats v. Dish Network, LLC.  In this case, a paraplegic Colorado medical marijuana patient challenged the drug policies of his corporate employer, Dish Network, after being terminated for testing positive for marijuana use.  In this decision, the Court interpreted a “lawful” activity as one that must be legal under both state and federal law in the context of an employment statute.  Thus, even though the employee had a right to use marijuana medicinally under Colorado state law, the Court upheld the corporation’s decision to fire him because marijuana’s federal designation under the Controlled Substances Act precludes it from being a lawful use federally.  If the issue raised in High Valley’s application were to reach the state Supreme Court, the same rationale may be used to deny the applicant’s proposed use as not satisfying the lawful aspect of beneficial use under both state and federal law.

Most cannabis growers in Colorado have been using water in order to grow their marijuana plants without running into water law issues.  This is because these grow facilities most likely use municipal water, whereas High Valley is asking Division 5 to approve an entirely new water right.  The application includes approval for a groundwater water right, a surface water right, a water storage right, and a plan for augmentation and exchange.  The company has sought water rights for exchange and augmentation from two other water districts, in order to safeguard its ability to access water rights in times of scarcity.  Currently, High Valley has an existing domestic well on site and two irrigation ditches that already provide water to its operations.

In sum, water is a state resource and under the Colorado constitution, “[t]he right to divert the unappropriated waters of any natural steam to beneficial uses shall never be denied.”  However, the water right High Valley wishes to receive is for a novel purpose: growing state-legal, yet federally-illegal marijuana. Thus, whether Division 5 officials will deny the company its sought water rights remains unseen, but the decision could spur wide-ranging repercussions for Colorado’s entire marijuana industry.

Coincidently, the Roaring Fork Club, one of High Valley’s neighbors and an opposer in the grow operation’s water application, was also at the center of another significant Supreme Court decision on the limits of beneficial use.  In 2015, the Court held in St. Jude’s Co. v. Roaring Fork Club, LLC, the Court held that fly-fishing failed to constitute a beneficial use under the very same statutory definition High Valley is arguing over.  In that decision, the Court wrote that the club’s proposed “uses” of the water could not be considered a beneficial use because the only purpose its application provided was the unquantifiable subjective enjoyment of the club’s guests.   Thus, the club was denied a new appropriation of “aesthetic, recreation and piscatorial (fishing)” water rights for its private fly-fishing stream.  While Roaring Fork Club’s opposition statement does not touch on the beneficial use issue, it does argue that approving High Valley’s application could potentially injure its own vested and conditional water rights.

Currently, the final decision in High Valley’s application is pending even though the application’s initial filing occurred more than two years ago.  In High Valley’s two amended applications, there has been a repeated increase in the size of water right sought.  Originally, the farm wanted a right to use 2.89 acre-feet on a yearly basis from the Roaring Fork River as well as its on-premises well.  Most recently, however, the farm is seeing to use 9.24 acre-feet annually, more than three times the original amount.

As of writing, the Division 5 referee has postponed a planned October status conference in anticipation of another Consultation Report from the division engineer.  As soon as this report is submitted, both High Valley and the opposers will each have thirty days to respond, respectively. Then the referee will schedule the status conference. When a ruling is eventually issued regarding the application, if High Valley’s requested water right decree is denied, the company can appeal the decision to the water court judge. Then, once the water court judge makes a determination, that eventual ruling could also be appealed directly to the Colorado Supreme Court.

Overall, the issue High Valley Farms application raises is an important one, and not just for the Colorado marijuana industry. As other states are legalizing marijuana for medical and recreational uses, those regulatory regimes could also implicate water law issues. Decision-makers in those states are surely looking to this eventual decision as an example in determining how legalized marijuana might fit into their particular water law frameworks.

Kathleen (K.C.) Cunilio

Image: Flickr user Aram Vartian, Creative Commons.

Sources:

Colo. Const. art. XVI, § 5, 6.

Colo. Rev. Stat. Ann. §37-92-103(4) (West 2016).

Coats v. Dish Network LLC, 303 P.3d 147 (Colo. 2015).

St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015).

Brent Gardner-Smith, Silverpeak owner applies for water rights for pot greenhouse, ASPEN JOURNALISM (Oct. 14, 2014), http://aspenjournalism.org/2014/10/14/silverpeak-owner-applies-for-water-rights-for-pot-greenhouse-near-basalt/.

Brent Gardner-Smith, Basalt water case could affect state’s pot industry, ASPEN JOURNALISM (Feb. 8, 2016), http://aspenjournalism.org/2016/02/08/basalt-water-case-could-%E2%80%A8aff ect-states-pot-industry/.

Brent Gardner-Smith, A hazy legal question lingers over water rights for Basalt marijuana facility, ASPEN JOURNALISM (Sept. 7, 2016), http://aspenjournalism.org/2016/09/07/a-hazy-legal-question-lingers-over-water-rights-for-basalt-marijuana-facility/.

Allen Best, Cannabis in Colorado, water rights and federal law, MOUNTAIN TOWN NEWS (Feb. 21, 2016), http://mountaintownnews.net/2016/02/21/4076cannabis-in-colorado/.

Charles Bethea, High Times with Aspen’s Cannabis Kingpin, OUTSIDE (Mar. 4, 2016), http://www.outsideonline.com/2059671/high-times-aspens-cannabis-kingpin.

Bureau of Reclamation, Reclamation Manual (Temporary Release): Use of Reclamation Water or Facilities for Activities Prohibited by the Controlled Substances Act of 1970, PEX TRMR-63 (May 16, 2015), http://www.usbr.gov/recman/temporary_releases/pectrmr-63.pdf (last visited Nov. 8, 2016).

Resp. Am. Summ. Consultation, In Re: The Application of High Valley Farms, 14CW3095 (Nov. 13, 2015), https://www.documentcloud.org/documents/3101645-2015-11-13-13-39-33-Response-to-Amended-Summary.html#document/p1/a317097 (last visited Nov. 8, 2016).


A historic agreement between the federal government, two states, and a private power company means that four dams on the Klamath River are potentially slated for decommissioning and removal. The Klamath River flows from Oregon through California before finally emptying into the Pacific Ocean. The amended Klamath Hydroelectric Settlement Agreement (“KHSA”), signed on April 6th, 2016, may bring unexpected success to a decade-long negotiation involving big energy, tribal water rights, historic wildlife habitat preservation, and the intermingling of state and federal government regulatory agencies.

The first Klamath agreement was formally executed in 2010, and brought together the federal government, the state governments of Oregon and California, PacifiCorp, a large electric cooperative, and over forty additional signatories, including the Yurok and Karuk Tribes. Repeated congressional inaction halted the prior agreement’s implementation after Congress again failed to act before adjourning for the year on December 31, 2015.  On February 2, 2016, the Department of Interior, together with the Department of Commerce, California, Oregon, and PacifiCorp announced they agreed to amend the KHSA, which the parties eventually signed in April. The amended KHSA is the culmination of the Klamath Basin Restoration Agreement executed in 2010 and the Upper Klamath Basin Comprehensive Agreement signed in 2014.

In September, PacificCorp submitted the revised KHSA to the Federal Energy Regulatory Commission (“FERC”) for public review. On October 17, 2016, Interior Secretary Sally Jewell issued a letter to the Commission backing the dam removal.

Initially, the disputes in the Klamath Basin emerged as environmental and conservation groups (such as the Nature Conservancy, American Rivers, and Trout Unlimited) sought to restore 420 miles of historic salmon runs and riparian habitat. Moreover, these groups sought to eliminate the toxic algae blooms proliferating in the idle backwaters above the dams.

The most significant barrier to restoration of the river has been a dispute over the cost of retrofitting the aging infrastructure using modern technology and, alternatively, the cost of dismantling and removing the century-old structures and preparing the land to return to its original state.  According to several studies, the retrofit option would not only result in reduced electricity generation, but would also cost millions of dollars more than the removal.  However, the economic impacts extend beyond the estimated 450 million dollar cost of removal. A group of nearly one hundred, individual property owners have voiced opposition over the impact that dam removal would have on their lakefront property values adjacent to the reservoirs created by the dams.  Thus, a decrease in private property values could also accompany the dam removals.

Under the revised agreement, the states of California and Oregon will create a nonprofit entity, the Klamath River Renewal Corporation, which will take over Pacificorp’s current ownership of the dams.  This new owner will decommission and eventually remove the dams using existing federal authority. Both PacifiCorp ratepayers and a 2014 voter-approved water bond from the State of California has already generated funding for the decommission.

Notably, the most recent amendment lacks many government participation requirements from the original KHSA agreement.  The original agreement required Congress to pass legislation opening up significant funding, as well as the formal release of PacifiCorp from virtually any liability associated with the dam removal process. Congress’s inaction prompted the parties to exclude the Congressional participation requirement from the revised agreement.

In her recent letter of support to the FERC, Secretary Jewell called the plan a “unique opportunity to restore [a] magnificent [r]iver,” which  could help “re-write a painful chapter in our history” but still “[protect] the many interests in the Basin.” Secretary Jewell cited four key reasons for the Interior Department’s support: 1) the likely cost of removal is well below the funds that have already been obtained, 2) reservoir bottom sediment testing showed that chemical concentration levels were safe for release downstream, 3) the removal will result in the reopening of more than four hundred miles of salmon habitat, nearly doubling Chinook salmon production, and 4) the removal would improve water quality.

Although the agreement facilitates the removal of the dams, critics believe it fails to solve many of the problems it originally intended to fix, including resolving disputes over water rights, as well as effectively addressing specific allocations to farmers, wildlife refuges, and Native American tribes.  Notably, the Hoopa Valley Tribe did not sign the KHSA agreement amid concerns regarding certain provisions.  Further, the Klamath Tribes of Oregon did not sign the agreement, because its tribal members had yet to approve it through a popular vote.

While some issues may remain unresolved, the agreement represents an example of multiple entities and interests cooperating to effectuate the removal of the dams.  This agreement, if successful, may be an example and model for future change in the realm of water agreements. Curtis Knight, executive director of non-profit group California Trout expressed cautious optimism about the agreement, “[d]am removal is an essential first step, but certainly not the only step, in this process. California Trout remains committed to the comprehensive vision behind the hard-won Klamath Agreements, which identified a balanced approach to water use, environmental restoration, and community sustainability throughout the basin.”

DeWitt Patrick Mayfield

Image: PacifiCorp’s John C. Boyle Dam in Oregon, one of four dams slatted for decommission under the Agreement. Wikimedia user Bobjgalindo, Creative Commons.

Sources:

Bettina Boxall, Klamath River Dams Moving Toward Removal Despite Congressional Barriers, L.A. Times (Feb. 3, 2016), http://www.latimes.com/local/lanow/la-me-klamath-river-dams-20160203-story.html.

Thadeus Greenson, Feds Announce New Klamath Accord to Remove Dams by 2020, North Coast Journal (Feb. 2, 2016), http://www.northcoastjournal.com/NewsBlog/archives/2016/02/02/feds-announce-new-klamath-accord-to-remove-dams-by-2020.

Paige Blankenbuehler, On The Klamath, A Surprising Win For River Advocates, HIGH COUNTRY NEWS (Feb. 5, 2016), https://www.hcn.org/articles/how-conservatives-handed-environmentalists-what-they-wanted-klamath-dam-removal-without-concessions.

Peter Firmite, Remove 4 Dams on Klamath, Study Urges, S.F. Chronicle (Apr. 4, 2013), http://www.sfgate.com/science/article/Remove-4-dams-on-Klamath-study-urges-4411365.php.

Press Release, Dep’t. of Interior, Parties Agree to New Path to Advance Klamath Agreement (Feb. 2, 2016), available at https://www.doi.gov/pressreleases/parties-agree-new-path-advance-klamath-agreement.

Thadeus Greenson, UPDATED: California, Oregon Governors to Make ‘Major Announcement’ on Klamath, NORTH COAST JOURNAL (Apr. 4, 2016, 11:10 AM),  http://www.northcoastjournal.com/NewsBlog/archives/2016/04/04/california-oregon-governors-to-make-major-announcement-on-klamath.

Press Release, PacifiCorp, Parties Agree to New Path to Advance Klamath Agreement, (Feb. 2, 2016), http://www.pacificorp.com/about/newsroom/2016nrl/klamath-agreement.html.

Jonathan J. Cooper, Officials Sign Unusual Pact to Tear Down Hydroelectric Dams, ASSOCIATED PRESS (Apr. 6, 2016, 6:45 PM), http://bigstory.ap.org/article/235ba2f92ded43f3a8af971a52da17f2/officials-sign-unusual-pact-tear-down-klamath-dams.

Press Release, Dep’t. of Interior, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators (last updated Apr. 14, 2016), available at https://www.doi.gov/pressreleases/two-new-klamath-basin-agreements-carve-out-path-dam-removal-and-provide-key-benefits.

Dan Bacher, Tribes, State and Feds Sign Klamath Dam Removal Agreement, DAILY KOS (Apr. 7, 2016, 1:36 AM), http://www.dailykos.com/stories/2016/4/7/1511799/-Tribes-State-and-Feds-Sign-Klamath-Dam-Removal-Agreement.

Will Houston, ‘Milestone’ moment: Klamath River dam removal plan submitted to feds, TIMES STANDARD NEWS (Sept. 23, 2016, 10:41 PM), http://www.times-standard.com/article/NJ/20160923/NEWS/160929892.

David Smith, Jewell supports dam removal in FERC letter, THE SISKIYOU DAILY NEWS (Oct. 16, 2016 8:59 AM)  http://www.siskiyoudaily.com/article/20161019/NEWS/161019616.

Letter from Sally Jewell, Secretary, U.S. Department of the Interior, to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission (Oct. 17, 2016), available at https://bloximages.chicago2.vip.townnews.com/heraldandnews.com/content/tncms/assets/v3/editorial/3/2f/32f4ad9f-9d5d-5656-a7c4-3a4d5d4eacc2/5806b3b857502.pdf.pdf.